A year after introducing its Social Media Ethics Guidelines, the New York State Bar Association has significantly expanded its guidance as to ethical boundaries of attorneys’ social media use in the practice of law and representation of clients. The Guidelines address the following topics: (1) attorney competence, (2) attorney advertising, (3) furnishing legal advice through social media, (4) review and use of evidence through social media, (5) communicating with clients, (6) researching jurors and reporting juror misconduct, and (7) using social media to communicate with a judicial officer. The updated Guidelines are “guiding principles” for attorneys and are not “best practices,” as “the world of social media is a nascent area that is rapidly changing” and the practice of law must keep pace with continually evolving developments.

 

As one of its most significant additions, the Guidelines delineate a duty of social media competence, such that an attorney “must understand the benefits and risks and ethical implications associated with social media, including its use as a mode of communication, an advertising tool and a means to research and investigate matters.” Such competence may include understanding the often detailed “terms of service” of a social media platform and whether the platform’s features raise ethical concerns.

 

The Guidelines touch upon diverse areas that can occur on a daily basis in the practice of law. For example, an attorney should retain records of social media communications with clients, just as he or she would if the communications were memorialized on paper. Attorneys must monitor and are responsible for legal endorsements posted on their social media sites, such as LinkedIn. The Guidelines address whether and to what extent that a lawyer may advise a client about the removal of posted social media information or alteration of an account’s privacy settings. Also, while an attorney may review publicly available information on a person’s social media account (e.g., a witness or a prospective juror), the lawyer will face ethical issues if he or she attempts to access private portions of accounts. Further, because social media communications are often not directed at a single person but rather may reach a large group or even the entire Internet, attorney advertising rules must be carefully considered and evaluated when a lawyer posts news, updates or accomplishments.

 

As the Guidelines make clear, lawyers must appreciate that social media communications may reach across multiple jurisdictions and implicate more than one state’s ethical rules. Lawyers must ensure compliance with the ethical requirements of each jurisdiction in which they practice, which may vary significantly. The Guidelines are an important document for not only attorneys admitted in New York, but also counsel in other jurisdictions who utilize social media in any aspect of their legal practice.